How Much Is Enough? We've Passed 15 'Anti-Piracy' Laws In The Last 30 Years

from the make-it-stop dept

Last week, I spoke on a panel at Stanford Law School concerning SOPA. There were two lawyers representing the MPAA's views, and at one point one of them said that he hoped that Hollywood just wanted to "meet in the middle" with those opposed to SOPA and find "a solution" that worked. Lawyer Andrew Bridges got up and asked a rather reasonable question: when, in the past, has the entertainment industry ever been willing to "meet in the middle" on copyright issues? He began listing out every single expansion to copyright law from the past 30 years. In 1976, we got the Copyright Act of 1976, which flipped copyright on its head and expanded it massively. Not only did it switch from an opt-in system with registration and renewals to an "everything is automatically opted-in," but it also massively expanded the length of copyright. You might think that the industry would be satisfied from that point forward. In fact, as key SOPA supporter Steve Tepp from the US Chamber of Commerce recently claimed: "To me if I get what I ask for, I stop complaining."

So, did the entertainment industry "stop complaining"? No. Since the Copyright Act of 1976 went into effect (in 1978), we've expanded copyright law 15 times on issues related to "stopping piracy" (and many, many more if you look at all copyright law expansions -- beyond just anti-piracy efforts -- such as expanding coverage to semiconductor chip designs, boat hulls and other things). It really started in 1982, meaning that we've had 15 new anti-piracy laws in just 30 years. If SOPA/PIPA had passed, it would have been 16 -- or more than once every two years. Let's take a look:

1982: Piracy and Counterfeiting Amendments Act: Increased criminal penalties for infringing records, tapes and films from $25k & 2 years in jail to $250,000 and 5 years in jail. Also... made it so that first-time offenders could get the maximum.

1984: Record Rental Amendment of 1984: Outlawed music rentals (have you ever wondered why there were no Blockbusters or Netflixes for music?)

1994: Uruguay Round Agreements Act: Not only did it seize works out of the public domain and put them under copyright (this was what was challenged in the recent Golan case), but it made it a criminal offense to bootleg concerts (audio or video).

1995: The Digital Performance Right in Sound Recordings Act: Created a new "performance" right for copyright holders concerning digital "performances."

1996: Anticounterfeiting Consumer Protection Act of 1996: Expanded racketeering laws to include criminal copyright infringement, as well as "trafficking" in computer software, documentation or packaging, as well as trafficking in movies or audiovisual works. Also let the government seize property associated with these activities (precursor to domain seizures...).

1997: No Electronic Theft (NET) Act: Decreased the threshold for what counts as criminal infringement (such as taking out the monetary profit requirement).

1998: Sonny Bono Copyright Term Extension Act: You should know this one. Expanded copyright terms by 20 years.

1998: Digital Millennium Copyright Act (DMCA): Again, you may have heard of it. Created anti-circumvention rules and the notice-and-takedown system for online infringement, among many other things.

2004: Intellectual Property Protection and Courts Amendments Act: Set up penalties (civil and criminal) for counterfeit labels, documentation and packaging in association with copyrighted goods (yes, separate from the content itself). Also lowered the bar to show willful infringement.

2005: Family Entertainment and Copyright Act: Criminalizes recording of movies in theaters and also lets theaters detain people merely suspected of recording in theaters. Criminalizes releasing a work online before it's been officially released (if it's "being prepared" for commercial distribution).

2008: Prioritizing Resources and Organization for Intellectual Property (PRO-IP) Act: Increased civil penalties for infringement. Increased government seizure & forfeiture powers (which is how the government currently justifies its questionable domain seizures) and created a job in the White House to focus on greater enforcement.

But apparently we're told that the internet is a "lawless wild west" when it comes to copyright issues? I think not. All we've seen is expansion after expansion after expansion, always using questionable claims of rampant infringement that is supposedly destroying industries. Each time, the various industries would create a moral panic about why this law was absolutely needed. Forgive us for being a bit skeptical. We've seen this game pretty damn frequently. To claim that there are no laws, or that we need to "meet in the middle" seems pretty bizarre. As Bridges noted at Stanford last week, if they want to "meet in the middle," are they willing to give up half of these laws to get SOPA/PIPA?

I'm willing to bet their response would be something like, "Well if what we really wanted to have enacted didn't get watered down in commitee or on the floor before being passed, then we wouldn't have to keep going back for more."

The object should be to make the penalty for abusing fair use as serious as abusing copyright. If a copyright holder were to violate fair use, with a bogus complaint then they should face similar criminal and civil liabilities for that action. By doing this copyright holders would have to think twice asking for a new penalty for infringement, since the same penalty will apply to them.

The Content Industry is Creating Piracy

We need to reiterate, that by changing the law, it is the content industry that is creating the piracy they claim to be fighting.

Basically, they get the laws they want which make formerly legal activities criminal. Then they whine even louder that they need even stronger laws to stop the ever growing piracy "threat". Restoring copyright law to it original duration; will nearly abolish piracy.

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That is exactly what keeps happening, they say they need stricter laws and then cry about not getting them and talk about meeting in the middle. By doing this it slowly ratchets upward a little each time.

I think it is time we need to go on a counter offensive. We need to start demanding each year that copyright be reduced. Then when they say no we should cry and demand they meet us in the middle.

Outlawed Music Rentals ...

Prior to the 1984 ban on music rentals, we had a small store in Grants Pass, OR that rented albums. Being about 16, it was most awesome. I rented whatever rock or punk they had. They ultimately closed, which I think was a combination of wrong market (small town), and later the ban.

Oh, and if I really liked an album I had rented ... er, I bought it. Choke on that.

Re: The Content Industry is Creating Piracy

To bad we don't have enough money to buy some Politicians.They have more than enough money so Boycott that asshole Big Content Industry.
Sure getting some of us to do that is a drop in the bucket but on the other hand you still have your dignity.They want to censor me and control my life then I will say I will never allow you to get into my wallet even for a dime.
One of these days we might even see these bozos get what they truly deserve.

Re: Sneak in an amendment

The RIAA and MPAA cannot exist unless they push for more and more legislation. That is their purpose.

Elected officials can't get campaign funds from Hollywood unless they also push for more and more legislation. That is how they get re-elected.

The only way they keep going is to keep making more rules. It doesn't matter if they're good or bad or necessary, but that you just keep pushing for more. That's how the system works. Lots of people are getting paid a lot of money to just keep pushing.

Hollywood learned its lesson in the 1950's witch hunts - pay the government off and you can do whatever you want. This is the result.

At this point any new law is probably bad or unnecessary, but there is no payout for repealing laws, no payout for easing off the legislation. There is only money for more laws.

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Re: Re: The Content Industry is Creating Piracy

Even if you had money, it takes more than a one-time payment. You have to assure them the money will keep flowing year after year after year. The only people that can do that are big corporations, the most wealthy citizens (most of whom are heads of big corporations), or well-established labor unions (who will rarely go against the interests of the big corporations that pay their workers)

Re: Sneak in an amendment

Here's another one for you:

Check out Public law 102-307, or the "Copyright Renewal Act of 1992". This amendment meant that the two-term requirement was gone, baby, gone. The only copyright term was the maximum term, and that was the case for all acts currently under copyright at the time.

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"I suspect it will stop when piracy is under control. Since you guys can't control yourselves, they keep writing laws to try."

Ignoring that implied accusation that everyone here is a pirate...

Since we've already discussed the idea that it's likely that even the death penalty wouldn't stop infringement, you'd have to ratchet up anti-piracy laws beyond any ethical boundaries (unless you want to admit that the entertainment industry is inherently unethical and willing to kill people over "piracy"), you're basically admitting that the IP maximalist dinosaurs will never enter the 21st Century and will always favor their own profits over human rights.

For what reasons should we respect the laws purchased by people who only respect their own profits?

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According to the "content" industry piracy will never be under control because with each new advance in technology there is more piracy, or at least potential piracy, for them to be concerned about, scream about and make dire warnings of (none of which ever come true).

I'm going to agree with Steve R. on this. It's these laws, the constant complaining and whining from Hollywood that has led to an increasing lack of respect for and sympathy with IP laws such as copyright and patents. It's also the growth into areas not formerly covered which the industry involved (see software patents) didn't want in the first place which increases the lack of respect for these laws.

Now yes, not respecting a law is no reason in law to break it. But when the lack of respect is widespread laws are constantly broken. See Prohibition.

I'm also rapidly coming to the conclusion that "piracy" will NEVER be under control because it's in the "content industry's" best interests that it never does. Or that they can complain that it never does, come up with fake studies and justify enormous expenditures of lobbying all while they continue to make huge profits while the very thing they complain will bankrupt them is still happening.

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It's a bit dishonest to consider the Bono extension as "anti-piracy" though, don't you think?

Perhaps. Let's just consider it "anti-public domain" then.

Personally, I consider it to be the ultimate deal breaker of copyright, which is supposed to be a bargain between the public and the creators, not just a monopoly for creators.

You could even make the argument that the Bono extension was the straw that broke the camel's back. The public not living up to their side of the deal (infringement/piracy) became widespread well after the creators decided to stop living up to their side by stopping works from entering the public domain.

Prohibition

This is basically why Prohibition didn't work. It would be better to legalize the use of copyrighted works rather than trying to stamp it out. For example 95% of what's on Google is "copyright infringement." Anybody who put a song under their home video is a criminal. Or wedding videos. Most wedding photographers have given up trying to tell the bride and groom they can't have "Time or our Lives" or some such song on their video and just do it. There should be some fair use provisions that allow people to use music or clips in their own productions.

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Re: Outlawed Music Rentals ...

And another big old elephant in this particular room is....most public libraries rent music for 0.00 per album and there is nothing the copyright police can do about it. Of course they don't have everything ever recorded. But neither did the rental place.

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See, I don't see it as a ratcheting up, not at all.

When you look at the laws, they were mostly put in place to deal with new technologies and new avoidance scenes that people came up with.

Laws are written generally to deal with the situations that present themselves. Widespread piracy wasn't an issue 30 years ago, as "copies of copies" were not comparable to the original product due to signal degradation. Now we are dealing with the digital file era, the internet, and widespread piracy. It's a joke to think that new laws wouldn't be written to make the internet be on par with other situations.

You cannot make copies of a movie and sell them at a flea market. You cannot use a home copy DVD and play it in a movie theater and charge people to see it. Defining those things in internet terms is a little harder, don't you think?

I won't even go into the situations of offshoring, and out of country sources for pirated material. Quite simply, there is ample proof that the new laws are needed to deal with rampant criminality in this area.

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The extension thing is for me a red herring in the discussion. when copyright made it past 50 years (and was set to a higher number by the bono act as well as international treaty), the true meaning of public domain is "not in your lifetime". That is to say that the content will be in the public domain for future generations, not your generation.

So 60 years, 75 year, 99 years... doesn't really matter. For the purposes of us standing here, it's mostly moot.

The real volume, the real scale of the issue isn't in 65 year old works. It's in today's hottest and newest stuff. Don't let the red herring of term extension get you down, it's almost meaningless in many ways now.

Like drugs.

There is an interesting 4 episode tv series "Illegal Drugs and How they Got That Way". I 'spose you're not allowed to download that either. But anyway it shows how almost every drug known to science was legal but little by little, law by law things got to the insane situation we endure today. Now maybe you think drugs are evil and awful. I'm not challenging that. The point is we wound up with the failed and expensive War On Drugs through the passing of many, many laws which were often not even directed at drugs themselves. Pot was first criminalised to create an excuse to deport Mexican workers during the Great Depression. Opium was criminalised to get leverage against Chinese workers who were detested by the government in the 19th century. And now, hatred of detested Geeks, punks, nerds and fanboys will fuel the War On Downloading even though downloading, copying and so forth is really in the best interests of the American people. And nothing will stop it. The MPAA today is no different than the Anti-Saloon League or the other pressure groups of the 19th century.

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It's a good point, but murders are often committed by irrational people, sometimes in fits of rage, and always by people who are committing an immoral act (or else we call it something less severe like negligent homicide or manslaughter).

Copying is not always an immoral act. The death penalty would likely deter more infringers than murderers, but it would still likely be ineffective against infringement. The passage of any law allowing such a punishment for copyright infringement could only come in the midst of an already totalitarian society or one on the brink of a revolution by the masses outraged by the injustices of the government.

Government is Trespassing

The Government doesn't build fences and ticket booths for movie theaters to exclude non payers. The Government should not be assigning scarcity to that which has no scarcity. If people want to protect the value of their products, that is for them to do. Nobody has a right to the value of their home. That is determined by the free market. This is not the proper role of Government- they'll screw everything up. If people want to use the Internet, they better have the technology to protect their products, or at least be able to go after those who steal- then the Government can prosecute them. It is not the job of the Government to manage ticket booths for everyone's products. Senator Orrin Hatch thinks the Government should start blowing up computers without due process- this is where the road is leading.... http://www.dethronehatch.com/orrin-hatch-is-no-friend-of-the-internet/

And now no more shall pass.

Well I would give them 3 and 7. I could well allow them 1, 2 and 4, but 11 and 14 needs reform, while 6, 10, 12 and 15 should be killed with extreme prejudice. The rest should be repealed more gently.

I believe you can see their greed in this when most of them is all about increasing fines. This has now led to the crazy non-commercial court cases that have yet to resolve a fine due to the loss of touch with reality.

Beyond those changes we also need a new non-commercial law to allow for easy resolve and fine in Civil court with the aim of control.

This is the best we can achieve without reforming Copyright on an international agreement.

Re: Re: Sneak in an amendment

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The real volume, the real scale of the issue isn't in 65 year old works. It's in today's hottest and newest stuff. Don't let the red herring of term extension get you down, it's almost meaningless in many ways now.

Nope. It is not a red herring whatsoever. Bottom line - the deal is broken and the creators struck the first blow. The creators demand that the public respects copyright, but show a complete and utter disdain for the public domain. Then they sit their scratching their heads saying "Why doesn't the public respect copyright laws?". It's a "Do as I say, not what I do" kind of thing and nobody, from infants to adults, ever respects that.

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Agreed. My proposal, 5 year copyright protection with no renewals.

I am at least going to try to meet them half-way. Copyright protection is 5 years, with unlimited renewals, but every 5 years they must submit IRS statements (under penalty of perjury) showing how much they have collected for sales of the products and they will have to pay the government 35% of the sales or $10,000, which-ever is higher to renew their copyright for another five years. All money raised will go into a copyright holding system, a website run by the copyright office which shows the title of the work, the copyright status and who paid for and how much the copyright tax was, and when the copyright expires.

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TtfnJohn - You raise another point "each new advance in technology". Why should an advance in technology "give rights" to the content creators? I would advocate that the content creators are NOT entitled to new "rights".

Take the example of a paper book. You can take that book anywhere, you can read it anytime, and you can sell it. So why should the development of a new technology give the content creators the "right" to deprive the reader of the ability to read the book out-of-region, to limit your ability to view content at your leisure, or to prevent you from selling it.

Again, it is the content industry that is creating piracy by lobbying the politicians to make these normal activities criminal.

Re: Re:

Wrong. The Copyright Term Extension Act (CTEA) of 1998 extended the duration of copyright. What that means is that content that otherwise would have been in the public domain and freely available did not become available. Consequently copying that content (that should have been legal) has become a criminal activity.

"I suspect it will stop when piracy is under control. Since you guys can't control yourselves, they keep writing laws to try."

I propose the "Nuke Anyone Who Is Suspected Of Being a Pirate Act". If filesharing is suspected by a member of the content industry, the government should sent a ballistic nuclear warhead to the location. It's the only way we can be sure the dirty little pirate and his family are dead, and hopefully the irradiated survivors in the countryside will get the message: zero tolerance for piracy.

They were started only to make rules for themselves (though MPAA was a little more shady, since they were started mainly as a monopoly enforcement arm of Famous Players-Lasky, Metro-Goldwyn and First National.

Re: Government is Trespassing

Two follow up points. One you wrote "The Government should not be assigning scarcity to that which has no scarcity.". Logically if an ersatz property right (copyright privilege) is tied to scarcity, then the converse should hold. That is that ersatz property right of an infinite good should disappear.

Second, the quest to end piracy is eliminating the concept of the rule of law. It used to be that evidence of a crime had to be collected by the police, presented to a judge, and then decided by a jury. Now private corporations are being given the power of the State to whimsically assign guilt at their discretion and to then initiate punitive action on their own volition.

Not only that, but search-warrants seem to be out of style and third parties are even being forced to act as a "neighborhood watch" for the content industry.

Re: Re: Here's another one for you:

I think you misunderstood me. The 1976 law meant that any work created after 1978 would be one-term: the maximum term (which at the time was 75 years). It had no effect on the works that were copyrighted before 1978, which still had the two-term requirement. The 1992 law I was citing brought the pre-1978 works to the same standard as the post-1978 works: one term for 75 years (until the Sonny Bono CTEA, which extended the term to 95 years).

Re: Why don't we have laws that sunset in the US?

That would only work if a law with a sunset provision is not allowed to be renewed for at least 10 years or something. Congress got away will the Patriot Act because it had sunset provisions. Every time it gets close to sunsetting, they re-up it.

!!!

Call me old-fashioned, but once I've paid for something, I consider myself to be the OWNER of said thing. I can do whatever my little heart desires with it, loan it, share it , give it away. Anyone who says otherwise had better be better-armed than me.

From what one understands, embedded software that is normally non-removable (i.e. software embedded in a pocket calculator) and software specifically designed for use on proprietary video game systems is exempt from the copyright prohibition on software rental (whether a software EULA can restrict or disallow rental is another issue.) Also, from what one understands, non-profit rental of sound recordings and software by public libraries is exempt from the copyright provisions prohibiting rental. (A question that comes up is whether the commercial rental of DVD discs that contain software as well as a movie (perhaps with the software being part of a bonus feature) could be legally disallowed.)

Re: Re: Why don't we have laws that sunset in the US?

Sunset laws are good and so is the concept of 2 congress having to pass the same law to make it valid maybe triggered by public pettions that make those laws of special interest to the public and they will watch and want a chance to change the congress to enact or defeat that law.

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Re: Like drugs.

I'll point you to a 'glorious' chapter in British Imperial history, the Opium Wars we fought against China to make them import opium... (ok, that was in response to them doing a massive trade blockade, but...)

Democratize copyright legislation now!

What is wrong with copyright legislation today? Every time a change to copyright law is proposed, it is in response to demands from powerful lobbies. Legislation reflects neither the will nor priorities of the majority. Legislation crafted to respect the will of the majority will garner their respect and consequently, will be easier to enforce.

The power of the corporate lobbies needs to be curbed and their voices muted. The people must be heard. At a minimum, copyright duration urgently needs to be pushed back and reformulated to eliminate the cause of orphaned works. Incredibly, our political representatives give the lobbyists the focus of their attention, then rush through legislation such that there is little time for debate. The lobbyists have no need of political advocates, and no business being at the head of the debating table. They are more than capable of presenting their case directly to the people. Legislation crafted to respect the will of the majority will garner their respect and consequently, will be easier to enforce. See more on our website.

The Laws Should Be Stronger

The laws should be stronger, and enforcement stronger and more consistent. Piracy is indeed rampant. One must be blind to deny it. Why isn't more being done? Furthermore, what happened to honor and conscience, in taking someone's work without permission or payment?

Re: The Laws Should Be Stronger

It's Enough When Piracy is Stopped

Enough laws will have been passed, and enforced, when piracy is stopped. Until then, we need stronger laws.

Only 15 law? It should be far more. How many thousands of new ways to pirate have appeared in the same time frame? The law needs to be constantly updated to deal with the new technologies of theft (sorry, "sharing").